The tension arises because sovereignty grants a state the authority to decide who enters its territory, while non-refoulement forbids sending individuals back to places where they face torture or death. When these mandates clash at the frontier, states rarely find a perfect middle ground. Instead, they often lean into procedural rigor to manage the friction.
Practical reconciliation typically happens through individual adjudication. Rather than a blanket ban on entry, which violates international law, states use screening processes to determine specific risk levels. This allows the government to maintain border control by turning away those who do not qualify for protection, while theoretically upholding the law by allowing those in genuine danger to stay. It is a slow, often messy attempt to separate the right to exclude from the duty to protect.
In practice, this often leads to legal battles over "pushbacks" and offshore processing. Critics argue these methods bypass legal scrutiny, while proponents claim they prevent uncontrolled influxes. Ultimately, the balance is not a fixed point but a constant, ongoing negotiation between a nation's desire for security and its commitment to universal human rights. The outcome depends on how much judicial oversight a democracy is willing to accept at its gates.
